Should law schools be allowed to block military recruiters from campus? That's one of the first questions John Roberts will decide as a Supreme Court justice, should the Senate confirm him.
The case, called Rumsfeld v. Forum for Academic Rights, concerns the constitutionality of the Solomon Act, which mandates that law schools will lose their federal funding if they ban military recruiters. In 2003, a coalition of schools sued. Last year, the Third Circuit Court of Appeals ruled in their favor and declared the Solomon Act unconstitutional. The Supreme Court is scheduled to take up the matter in hearings beginning in mid-October.
This week, a group of law professors and students, led by George Mason Law School dean Daniel Polsby, filed an amicus brief supporting the military. The document's signers include Douglas Kmiec of Pepperdine and Robert Turner of the University of Virginia. Polsby's basic opinion about the appeals-court decision can be summarized in two words: It's bogus.
The Solomon Amendment was originally passed in the wake of the 1993 "Don't Ask, Don't Tell" policy when law schools stated that if the military were going to discriminate it would bar recruiters from campuses.
The law was weakly enforced through the 1990s. After 9/11, however, the Defense Department insisted on fuller compliance. In response, the Forum for Academic and Institutional Rights (FAIR), a law-school association, sued the Pentagon.
FAIR lawyer Josh Rosencrantz, in an interview with National Review Online, asserts that "the policy's always been unconstitutional." His association regards the act as a method of suppressing speech. "If the first amendment gives bigots the right to discriminate against gays then certainly it gives the right to right-minded academic institutions to discriminate against bigots."